IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1) REPORTABLE : YES
(2) OF INTERES T TO OTHER JUDGES : NO
(3) REVISED .
DATE : [2./0 /202<, '-
SIGNATURE
In the matter between:
KINGSLEY JACK WHITEAWAY SEALE
ONTSPAN BELEGGINGS {PTY) LTD
HI FRANK COMPONENTS (PTY) LTD
and
MINISTER OF WATER AND SANITATION
In re:
Appeal Case No. A152/2025
Court a quo case number: 62272/20 17
First Appellant
Second Appellant
Third Appellant
Respondent
TRANSVAAL YACHT CLUB
and
KINGSLEY JACK WHITEAWAY SEALE
ONTSPAN BELEGGINGS (PTY) LTD
HI FRANK COMPONENTS (PTY) LTD
SCHOEMANSVILLE OEWER CLUB
and
MINISTER OF WATER AND SANITATION
In re:
KINGSLEY JACK WHITEAWAY SEALE
ONTSPAN BELEGGINGS (PTY) LTD
HI FRANK COMPONENTS (PTY) LTD
SCHOEMANSVILLE OEWER CLUB
and
MINISTER OF PUBLIC WORKS
MINISTER OF WATER AND SANITATION
PREMIER OF THE NORTH-WEST PROVINCE
TRANSVAAL YACHT CLUB
2
Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Interven ing Respondent
First Applicant
Second Applicant
Third Applicant
Fourth Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
3
REGISTRAR OF DEEDS, PRETORIA Fifth Respondent
JUDGMENT
The judgment and order are published and distributed electronically .
Summary: Full Court appeal against refi1sal of Court a quo to rescind judgment and order granted
in the High Court and thereafter confirmed on appeal by Supreme Court of Appeal, and leave to
appeal to the Constitutional Court thereafter being refused by that Court. Issues related to the
Appellants' entitlement to seek declaratory and mandatory relief in relation to registration of
praedial servitudes against State-owned land.
Held that lower Court has no jurisdiction to rescind order of Higher Court.
Held also that the appeal will have no practical effect or result. Appeal dismissed.
VAN NIEKERK, J (MBONGWE J et MANAMELA J concurring)
INTRODUCTION:
[1] First, Second and Third Appellants are the owners of immovable properties situated in
townships developed around the Hartbeespoort Dam. The First Appellant is a director
and shareholder in the Second and Third Appellants and the Second- and Third
Appellants are related entities by virtue of their nexus to First Appellant.
[2] Respondent is the Minister of Water and Sanitation ("the Minister') who was the
intervener in the Court a quo. The Minister applied to be joined as Second Respondent
in reconvention in the Court a quo in the Minister's official capacity for reasons which will
transpire hereunder. The Minister was the only party which opposed the appeal.
4
(3] The appeal follows on a protracted history of litigation, primarily between the Appellants
on the one side (at a stage during the litigation joined by Schoemansville Oewerklub, a
voluntary association) against the Minister (at a stage joined by Transvaal Yacht Club
("TYC")) on the other side. The litigation essentially related to rights of access to the
foreshore and the waters of the Hartbeespoortdam for leisure purposes (fishing and
boating) by property owners in the townships of Schoemansville and Meerhof which are
adjacent to the waters of that dam. The issues raised by Appellants related inter a/ia to
whether such rights presently exist, the nature of such rights, and whether the owners of
properties in those townships are entitled to registration of praedial servitudes against
titles of certain relevant state-owned properties which forms the shore of the dam, to
protect those rights. Second Appellant ("Ontspan") sought distinct declaratory relief
against the Minister which will be referred to infra.
[4] The protracted litigation commenced with the Appellants' application for declaratory and
mandatory relief, which application Davis J dismissed. Aggrieved by the dismissal
Appellants applied for and were granted leave to appeal to the Supreme Court Appeal
("SCA") which then upheld the Davis judgment. Appellants then applied for leave to
appeal to the Constitutional Court which was denied by that Court. TYC, one of the
unsuccessful parties in the appeal, then applied in this Division in terms of Rule 42(1)(b)
to correct a cost order made by Davis J during the application for leave to appeal. The
Appellants then opposed that application and instituted a counter-application for
rescission of the Davis judgment and order. That rescission application was dismissed
by Cilliers AJ who simultaneously granted the order in the Rule 42(1)(b) application. It is
against that order and judgment of Cilliers AJ that the appeal lies.
5
[5] Considering the history of the matter and the nature of the relief sought and orders
granted by the Courts referred to supra, the parties were invited to file supplementary
heads of argument on the issue whether the appeal will have any practical effect or result,
failing which Section 16(2)(a) of the Superior Courts Act 10 of 2013 will provide this Court
with a discretion to dismiss the appeal on that ground alone.
HISTORY OF THE LITIGATION BETWEEN THE PARTIES:
[6] For purposes of the appeal, it is necessary that the nature of the disputes, the relief
sought, and the orders made in the previous litigation between the parties, must be
analysed. For that purpose, it is convenient to refer to the judgments delivered in each of
the previous Courts referred to above as they provide a complete synopsis of issues and
the full history of facts which informed the issues. These judgments contain
comprehensive summaries of the historical acquisition of the contested rights of the
Appellants and for sake of brevity are concisely summarised hereunder only insofar as
that history is relevant to this appeal.
[7] The respective Applicants and Respondents in the three judgments to which reference
will be made were not similar in each of those proceedings. however it is not relevant to
explain the correct and precise joinder of all parties in each of the prior proceedings as it
will only serve to confuse. In my view it will suffice to record that the present Appellants
were the applicants in the application for declaratory relief before Davis J, the appellants
in the appeal before the SCA, the applicants in the application for leave to appeal to the
Apex Court (i.e. the Constitutional Court), and the applicants (in reconvention) in the
rescission application.
6
[8] The Appellants (joined by Schoemansville Oewerklub as the Fourth Applicant) instituted
an application during 2017 against inter alia the Minister and TYC and in that application,
which was adjudicated by Davis J during 2019, the Appellants sought inter alia the
following relief:
[8.1] A declarator that there was fictional fulfilment of a condition precedent in a
Notarial Contract entered into on 27 September 1922 between a certain Mr. JH
Schoeman and the Union Government (the Minister of Land at that time
representing the Government of the Union of South Africa). That Notarial
Contract is registered in the Deeds office. The Appellants further sought an order
that the First- and Second Respondents in that application (i.e. the Minister of
Public Works and Minister of Water and Sanitation respectively) be ordered to
register the rights which were detailed in clauses of a 1918 agreement of sale of
land and in the 1922 Notarial Contract (in the various judgments referred to as
"clause K") as praedial servitudes against the titles of certain properties of the
State which forms the shore of the Hartbeespoortdam. These rights as detailed
in the 1918 agreement and 1922 Notarial Contract intended to secure access to
the waters of the dam for leisure purposes (boating and fishing) for property
owners at certain areas.
[8.2] The Davis judgment analysed the complicated history, evidenced by documents,
which narrates the acquisition of portions of the farm Hartbeespoort by the Union
Government from a certain Mr Schoeman in terms of a Memorandum of
Agreement in 1918. This agreement contained a servitude clause ("clause K")
which eventually, after some disputes, led to an agreement between the Union
7
Government and Schoeman, which then resulted in the Notarial Contract in
1922.
[8.3] The 1922 Notarial Contract contained a clause which intended to give effect to
clause K of the 1918 agreement. This clause in the Notarial Contract provided
for a servitude to be registered in favour of Schoeman or his "Assigns" against
the land which would form the submerged area of the Hartbeespoortdam (which
was not yet constructed) as soon as the Government has acquired the whole of
the area which would form the submerged area of the dam. Schoeman retained
these rights because he intended to establish townships against the shores of
the dam on his land, and the rights would secure access to the dam for future
owners of properties in tlie townships for purposes of fishing and boating. The
registration of the rights contained in the 1918 agreement by way of a servitude
as provided for in the 1922 Notarial Contract were therefore subject to a
condition precedent. It was common cause that the condition precedent was
never fulfilled.
(8.4] The Township of Schoemansville was developed by Schoeman and established
in 1923 and a condition of establishment provides that all registered erf-holders
shall be entitled to the right of access to the dam at specified areas for stated
leisure purposes. The same applied to the township of Meerhof, which was
established thereafter.
[8.5] Because the condition precedent to clause K in the 1922 Notarial Contract
remained unfulfilled, Appellants sought declaratory relief that there was fictional
fulfilment of the condition precedent in the 1922 Notarial Contract and an order
8
that the Minister of Public Works effect registration of praedial servitudes against
the title deeds of the relevant State-owned properties. Appellants sought in the
alternative similar relief aimed at achieving the registration of servitudes, based
inter a/ia on acquisitive prescription.
[8.6] Ontspan, owner of a property (referred to as portion 43 in Schoemansville),
sought a declarator in relation to the existence of an alleged registered praedial
servitude of access to the shore of the dam, which it claimed emanated from a
Crown grant, and which was disputed by the Minister in that application.
[9] Davis J. dismissed the application in terms of a judgment handed down on 9 May 2019
for reasons which are summarised as follows:
[9.1] The Appellants failed to prove fictional fulfilment of the condition precedent.
[9.2] The rights acquired by Schoeman in the 1918 agreement in relation to access
rights (clause K) were personal and not praedial in nature and had therefore
lapsed on the passing away of Schoeman in 1967;
(9.3] Davis J also found that the alternative cause of action based on acquisitive
prescription must fail.
[9.4] Davis J. made no specific order on the declaratory relief sought by Ontspan.
[1 O] Dissatisfied with the Davis judgment, the Appellants applied for and were granted leave
to appeal to the SCA. During the application for leave to appeal, Davis J. made an order
for costs which did not specify that costs of the application for leave to appeal should be
9
costs in the appeal, which is the order which normally follows when leave to appeal is
granted. The parties became aware of this issue when the appeal to the SCA was
finalised and costs were in the process of being taxed.
[11] The judgment of the SCA is reported1 and in that judgment the following was inter a/ia
held:
[11.1] The rights contained in Clause K in the 1918 agreement were granted to
Schoeman in his individual capacity or his assigns, and Clause K did not provide
the right to a praedial servitude;2
[11.2] Clause K in the 1922 Notarial Contract was in essence an agreement to agree,
and therefore unenforceable;3 and
[11.3] The Appellants failed to show the acquisition of the servitudes by prescription.
4
[12] The SCA therefore found that the Appellants were not entitled to the declaratory relief
claimed before Davis J, and the judgment of Davis J. was upheld in respect to that part
of the relief claimed before Davis J. It is important to note that the SCA, under the heading
"Second Appellant" in paras 43 and 44 of the SCA judgment made the following remarks
regarding Ontspan:
1 Seale and Others v Minister of Public Works and Others (899 PA/A 2019} {2020] ZASCA 31 (15 October 2020) .
2 Seale judgment supra, paras [23] to {24).
3 Seale judgment, supra, paras {27] to [36].
4 Seale judgm ent, supra, paras {37) to {42).
10
"[43) It remains to deal with the declarator claimed by Ontspan Beleggings. The
court a quo erred in saying that no reliance was placed on rights that had
emanated from the Crown Grant. It therefore failed to consider Ontspan
Beleggings' case before it. As I have demonstrated, the owner of portion
43 is clothed with a registered praedial servitude of access to the Dam
over the foreshore in front of it. In this court the second respondent
submitted that there had been no dispute as to the existence and use of
this servitude. Ontspan Beleggings countered the submission by correctly
pointing out that in the answering affidavit in the court a quo, the second
respondent had denied that the Crown Grant gave rise to a praedial
servitude. The true position was repeated in the replying affidavit. The
second respondent did not dispute that in argument in the court a quo it
had adopted the stance reflected in the answering affidavit.
[44) In the light of the second respondent's denial of Ontspan Beleggings'
rights, the court a quo should have issued the declarator that it sought.
However, in written and oral argument in this court, the second
respondent unreservedly recognised the servitude attached to portion 43.
Thus, there was no further need for the declarator that
Ontspan Beleggings had sought. It is trite that this court does not decide
abstract or academic issues and there is no reason why we should, in
these circumstances, nevertheless exercise a discretion to issue a
declarator. The second respondent acknowledged the rights of Ontspan
11
Beleggings almost at the outset of the appeal. There should, however, be
an order that the second respondent is liable for the costs of Ontspan
Beleggings in the court a quo, and not the other way around, as the court
a quo ordered."
[13) Following the findings aforesaid, the SCA dismissed the appeal with costs, with the
proviso that the order for costs in favour of the Second Respondent was altered to the
extent that the Second Respondent was ordered to pay the costs of the Second Applicant
(Ontspan Beleggings).
[14) The Appellants then sought leave to appeal to the Constitutional Court, which dismissed
that application. The Constitutional Court held that the appeal did not engage the
jurisdiction of the Constitutional Court and in any event bore no prospects of success.
Ordinarily, that would be the proverbial end of the road for the Appellants signifying the
end of their quest for the registration of praedial rights of servitude and the other
declaratory relief sought in the application before Davis J. However, that was not to be.
[15) When the Taxing Master commenced taxation of cost, it became clear that the order
which Davis J. made when leave to appeal was granted to the SCA, did not follow the
wording to convey that it was ordered that cost of the application for leave to appeal
should be cost in the appeal. The order made by Davis J reads; The application for leave
to appeal is granted to the Supreme Court of Appeal, including the costs of multiple
counsel so employed'. TYC, who was one of the successful parties in the SCA, then
instituted an application in terms of Rule 42(1 )(a) of the Uniform Rules of this Court for
an order that the alleged patent error in the order of Davis J. be amended by the Court to
reflect that the cost should be cost in the appeal.
12
(16] This substantive application became necessary because the Appellants refused to
accede that the order was patently incorrect and insisted that TYC formally approach the
Court for an order. TYC annexed a transcription of the proceedings to that application
which records the order granted by Davis J to read as set out hereunder. Appellants
opposed that application and filed a counter-application seeking the rescission of the
order of Davis J. ("the rescission application").
(17] The Appellants' rescission application was based on the following stated grounds:
(17.1] The order of Davis J was based on fraud committed by TYC and the Minister
which essentially, according to the Appellants, consisted therein that they
presented false evidence in relation to the issue of acquisitive prescription.
[17.2] The order of Davis J is void, because property owners affected by the order
which found that they did not have a right to enforce a praedial servitude were
not joined in the proceedings. Underlying this ground, the Appellants contended
that, having found that the rights which Schoeman acquired were personal rights
and not praedial in nature, the judgment is a judgment in rem and thus void
because the owners in the relevant townships were not joined to the
proceedings.
[18] In the Court a quo Cilliers AJ dismissed the rescission application and granted relief under
the application in terms of Rule 42(1) by varying the order of 22 August 2022 in the
application for leave to appeal (of Davis J) to read:
"1. The application for leave to appeal is granted to the Supreme Court of Appeal.
13
2. Cost will be cost in the appeal, including cost of multiple counsel where so
employed''.
[18) Essentially, the relief sought by Appellants in the rescission application, ancillary to
rescission of the judgment of Davis J, were orders that the rights detailed in Clause K of
the aforesaid agreements be registered as praedial servitudes against the titles of the
stated servient and dominant tenements {similar relief sought before Davis J) and the
declaratory order in favour of Ontspan which the SCA found should have been granted
by Davis J. as set out in par [44) of the SCA judgment. This relief was sought,
notwithstanding the findings of the SCA as set out in paragraph [12] supra.
[19] The judgment of the Court a quo delivered by Cilliers AJ refers to the SCA judgment in
relation to the history of the dispute and concluded that it is inappropriate for the High
Court to entertain the counter-application {for rescission). The Court a quo found that the
High Court does not have jurisdiction to entertain the application for the rescission of the
order where the SCA and the Constitutional Court have pronounced on the orders of the
respective lower Courts. The Court a quo also dealt with the merits of the application for
rescission and dismissed the application.
GROUNDS FOR APPEAL:
(20] In heads of argument filed on behalf of Appellants the following is stated:
"1. 2 The matter before this Court is not an attempt to re-litigate what has already
been decided. It raises four distinct issues of law and fairness, each going to the
integrity of the judicial process, the recognition of conceded rights, and the
constitutional protection of property. It furthermore points to fundamental errors
14
in law and procedure which, if left uncorrected, perpetuate injustice and
uncertainty".
[21] The aforesaid quotation is contained in the introduction to the Appellants' heads, and
attempts to convey that the purpose of the application for rescission of the Davis
judgment is not a re-litigation of res judicata, but, as a further reading of that introduction
display, is aimed at correcting incorrect legal findings of the Davis judgment and to
recognise rights which were conceded in favour of the Appellants during previous
litigation. In my view this statement essentially confirms that the Appellants were
attempting to achieve in the rescission application that which they were unable to achieve
in the preceding litigation.
(22) In paragraph 1.3 of the Appellants· heads of argument the following rationale is provided
for the rescission application:
"The hearing a quo revealed an exceptional state of affairs that warranted not only
rescission of the Judgment by Davis J or recognising its nullity, but also, intervention in
respect of the relief previously denied by Davis J to ensure finality to the matter".
[23] Expanding on the purpose of the rescission application as quoted supra, the Appellants
proceed to state the following:
"1.4 The errors concerning the rights of erf holders are:
I. The Davis J judgment was characterised as in rem; a j udgment in rem
binds the world (inter omnes) and not only the cited parties. A judgme nt
purporting to bind the world without proper joinder is no judgment at all -
15
it is a nullity ab initio. The court a quo erred in misstating effect of in rem
orders and failed to recognise that, if indeed in rem, it is void ab initio and
if in personam, the Davis judgment rested on a mistake of fact (justus
error), the court a quo erred in treating it as conclusive/binding despite the
Minister's clarified concessions. Either way, relief cannot be refused;
there is a Constitutional dimension: erf holders' property rights (s 25)
adjudicated without them denies access to courts (s 34).
II. The Minister has clarified, both in the Constitutional Court and a quo, that
the rights contained in the title deeds are indeed existing real rights. That
clarification resolves the true dispute in favour of the Appellants. The relief
sought is, however, neither academic nor redundant; it is necessary to
prevent ongoing prejudice.
Ill. Allegations of fraud discovered post-litigation are not barred from
adjudication. The court a quo erred in holding it lacked jurisdiction to
consider such claims and the TYC 's admitted misrepresentations directly
induced refusal of relief. As a result the judgment must be rescinded.
South African authority, reinforced by Takhar v Gracefield Developments
[2019) UKSC 13, confirms that is irrelevant; undisputed fraud cannot and
should not be excused it vitiates everything it touches including judgments ,
therefore, rescission is automatic with proven fraud''.
1. 5 In respect of the Second Appellant ("Ontspan") The Court a quo held that the
Constitutional Court's refusal of leave to appeal effectively precluded declaratory
relief in favour of Ontspan, despite that it did not partake in the Constitutional
16
Court proceedings, the Minister has conceded Ontspan's rights and is not
opposed to the Declaratory which relief would clarify and prevent prejudice from
officials' continued refusal.
1. 6 The Court below erred by varying costs mero motu without hearing parties,
despite a pending Rule 42 application. This was procedurally irregular. On
Biowatch principles, costs should not have been awarded against litigants
asserting constitutional rights. The Minister's shifting stance and the TYC's
fraud, on the other hand, warranted costs against the respondents on a punitive
scale".
[24] Appellants conclude by summarising the grounds for the appeal as follows in their heads
of argument:
"1. 11 This appeal is therefore built on four pillars:
i. Recognition of Ontspan's conceded rights
ii. The in rem I in personam fork, leading to either nullity or error
iii. Fraud as a new ground warrants rescission
iv. Procedural fairness in costs".
[25] The Appellants then proceed to argue in the heads of argument that the Court a quo
incorrectly found that the SCA acknowledged the entitlement of Ontspan to the relief
17
sought before Davis J because the Court a quo, in para [33) of the judgment, stated the
following:
"The Supreme Cowt made specific orders concerning the rights of Ontspan Beleggings".
[26) What the SCA in fact stated in regards to Ontspan Beleggings is set out in paragraph [43)
to [44) of the judgment of the SCA and quoted in paragraph [12] supra. Appellants are
thus correct in stating that Cilliers AJ erred in finding that the SCA made specific orders
concerning the rights of Ontspan. However, it is clear that the SCA refrained from making
an order because the SCA found that the issue between Ontspan and the Minister was
moot. The finding made by the SCA was not in relation to the rights of Ontspan, but in
relation the issue being moot.
[27] The Appellants argue in their heads of argument that the declarator sought by Ontspan,
which the SCA had held to have erroneously not been granted in favour of Ontspan by
Davis J, but notwithstanding refused to grant because it was found not to have any
practical effect, should be granted for the following reasons:
"2. 7 Therefore, the order, already determined to have erroneously not been granted
in favour of Ontspan by Davis J, would materially clarify the situation, prevent
the potential future confusion and augment the Supreme Court of Appeal's
decision with the requisite means to ensure finality to a matter that should have
already been resolved through the acknowledged concession".
[28] The Appellants further argue that the judgment by Davis J should be set aside or declared
a nullity in respect to the relief which affected the access rights in favour of the erven of
the relevant townships because the Minister clarified before the Constitutional Court and
18
in the Court a quo that those title deed rights are existing real rights. According to the
Appellants, post the litigation that clarification has not been honoured by the Minister's
department. Appellants then argue that the Court a quo erred in holding that the
Appellants' failure to join all erf holders justified the refusal to set aside the judgment of
Davis J and argues that joinder cannot cure a judgment already given in rem without the
necessary parties.
[29] In summary, what the Appellants intended to achieve with the rescission application,
could be summarised as follows:
[29.1] To set aside that part of the Davis judgment and order which held that the rights
of the erven holders (who were not joined in the application) were personal
rights, and that registration of servitudes over the title deeds of State properties
are therefore not competent. Because of the concession of the Minister, which
recognises those rights because they are contained in the relevant township
planning schemes, the Court should now order such registration.
[29.2] Because the SCA found that Davis J erred in not granting the declaratory relief
in favour of Ontspan Beleggings. the rights of which were conceded by the
Minister in the appeal, that declaratory order should now be granted for purposes
of finality.
[30] Apart from the issues arising from the Davis judgment, Appellants submit that Cilliers AJ
erred by mero motu amending the cost order because the issue was not fully ventilated
before the Court a quo, therefore preventing the Appellants from making the necessary
and required submissions to support their stance in relation to that costs issue.
19
[31] When the procedure adopted by the Appellants and the issues on appeal are analysed,
it is clear that the following issues arise which require determination, as it may be
dispositive of the appeal.
[31.1] Can the order of a Court, which was uph~ld on appeal by a Higher Court, be
rescinded?
[31.2] Where the Supreme Court of Appeal held that an issue is moot, can that issue
be revisited between the same parties in a lower Court where there is no dispute
on the issue?
[31.3] What is the practical effect of the appeal before this Full Court?
CAN THE JUDGMENT OF A LOWER COURT, WHICH WAS UPHELD/SET ASIDE BY A
HIGHER COURT ON APPEAL, BE RESCINDED?
[32] The Court a quo dealt with this issue under the heading "The counter application" in
paragraphs [30) to (54) of its judgment, and concluded that it would be inappropriate for
the Court a quo to entertain the counter-application in circumstances where the Davis
judgment was upheld on appeal by the SCA and on a further appeal to the Constitutional
Court, leave to appeal being refused. In this regard, the Court a quo inter alia held:
[32.1] An application to the High Court to set aside its own order after that order was
pronounced upon in the SCA and in the Constitutional Court, is unprecedented.
Cilliers AJ stated that he was unable to find any precedent in the Republic of
South Africa. or in foreign law, where the rescission of a judgment a quo and/or
a declaration of voidness of a judgment a quo was sought after a Higher Court
20
or Higher Courts finally pronounced on an order made in a Court of first
instance;5
[32.2] The Court a quo referred to authority6 where Kotze J held that to hear an
application for review after the High Court pronounced finally in an appeal from
the Magistrate's Court on the matter, would render the final judgment on appeal
of no effect. The exception is that where fraud is alleged to have been
perpetrated on the Court to obtain the judgment, but that such application had
to be brought in the Court that pronounced finally in the appeal. The learned
Acting Judge a quo further referred to authority7 where Khampepe J considered
jurisdiction of the Constitutional Court and inter alia held that: " ... it would of
course be inappropriate for any other court to entertain a rescission application
pertaining to an order made by this Court (the Constitutional Court)";
[32.3] Referring to the hierarchy of the Courts, the doctrine of precedent and the
principle of finality, the Court a quo held that it would be inappropriate for a lower
Court to entertain a rescission application pertaining to an order made by the
Constitutional Court. Cilliers AJ then concludes in paragraph 40 of that judgment
as follows:
"Without placing any limitation on the interpretation of the finding, I consider that
the finding includes the meaning that it would be inappropriate for a lower court
5 Vide: Judgment, Cilliers AJ, para {34].
6 Magomed v Midd/ewick N.O. and another 1917 CPD 539 at 540.
7 Zuma v Secretary of the Judicial Commission of Inquiry into allegations of state capture, corruption and fraud in
the public sector, including Organs of State and others 2021 (11) BCLR 1263 {CC) at {49]
21
to entertain a rescission application of an order of a lower court in respect of
which the Constitutional Court pronounced finally on appeal in a recent judgment
and order".
[32.3] The learned Acting Judge compared the doctrine of merger found in the law of
India which is rooted in the idea of maintaining the decorum of the hierarchy of
Courts and tribunals and based on the reasoning that there cannot, at one
relevant point in time, be more than one operative order governing the same
subject matter.
[33] The learned Judge a quo reasoned that final judgments and orders of a higher Court will
be rendered meaningless when the orders of lower Courts are set aside, that it will result
in an untenable situation, and that is against the principle of certainty, predictability,
reliability, equality, uniformity and convenience.
(34] In my view the reasoning of Cilliers AJ cannot be faulted. To rescind the order of a lower
Court which has been pronounced on by a Higher Court will offend the interests of justice.
In my view, once a Higher Court has pronounced on the judgment of a lower Court,
whether it is upheld or set aside, the judgment of the lower court is replaced with the
judgment of the Higher Court, and the order of the lower Court is replaced with the order
of the Higher Court and becomes the order of the Higher Court. The operative order is
the order of last instance granted by the Higher Court and the order of the lower Court
has no more effect. In my view this is a matter of common sense.
22
[35] Based on this principle, the Court a quo lacked jurisdiction to entertain the rescission
application and the appeal against the Court a quo's dismissal of the rescission
application cannot be upheld.
SECTION 16(1) OF THE SUPERIOR COURTS ACT:
[36] I am of the view that it is also necessary to consider the effect of the relief claimed in the
rescission application in the context of the stated reasons and grounds for appeal as set
out in the Appellants' heads of argument and quoted in paragraphs [20] to [29] supra.
Having considered the aforesaid stated reasons for instituting the rescission application
and appealing against the dismissal of that application, it is clear that the appeal falls foul
of the provisions of section 16(2)(a) of the Superior Courts Act. That section reads:
"16. Appeals generally
(1)
(2)
(a)
(i) When at the hearing of an appeal the issues are of such a nature that the decision
sought will have no practical effect or result, the appeal may be dismissed on this
ground alone.
(ii) Save under exceptional circumstances, the question whether the decision would
have no practical effect or result is to be determined without reference to any
consideration of costs."
23
[37] The declaratory relief sought in favour of Ontspan was not granted by Davis J, although
the entitlement to that relief was in dispute in that application and disputed by the Minister.
From reading paragraphs [43] and [44] of the SCA judgment as quoted in paragraph [12)
supra. it is clear that the Minister conceded the rights of Ontspan when the parties were
before the SCA. Those paragraphs of the SCA judgment clearly confirm that the SCA
then declined to grant a declarator in favour of Ontspan on the grounds that there was no
further dispute on the rights of Ontspan. That issue, namely the entitlement to the
declaratory relief claimed by Ontspan, is thus res iudicata and this court, sitting as a lower
court (to the SCA), will effectively re-write the judgment of the SCA if this court rescind
the Davis judgment and grant the declarator in relation to the rights of Ontspan.
[38] In any event, in all subsequent litigation since the SCA judgment the rights of Ontspan
were conceded by the Minister. There is presently no /is in relation to these rights, and
no argument could be advanced on behalf of the Appellants to illustrate any practical
effect or result that such a declarator would achieve.
[39) Insofar as the Appellants' asserted praedial rights flowing from the 1918 agreement and
1922 Notarial Contract are concerned, the following statement was made by First
Appellant in the founding affidavit in the application which served before Davis J, namely:
"12. 5 As appears from the conditions of establishment of Meerhof, a copy of which is
annexed hereto marked 'FABO', it contained a clause similar to the one included
in the Schoemansville Township. The following was inserted as Clause (h) of
the title conditions:
24
'(h) All registered erfholders in the Township shall be entitled in common with
the Applicant, his successors in Township Title or Assigns, to the right of
access to the lake at the southern end thereof near the late HJ
Schoeman's old dam known as Sophia's Dam (now adjoining the
Schoemansville Station) on the Eastern Bank of the Crocodile River for
the purpose of boating in the said lake and fishing therein subject to the
conditions of Notarial Agreement No. 99/1922-M, dated the 27'h
September 1922, and filed in the Deeds Office. The owners of business
erven Nos. 89, 90, 164 and 165 however, shall be entitled to ply boats for
hire on the lake as from the abovementioned access'.
12.6 By virtue of the rights retained in the 1918 Sale Agreement and 1922 Notarial
Contract and recorded in the title conditions of the residential erven, the Meerhof
owners enjoyed and still enjoys [sic] access to the dam for purposes of boating
and fishing from the Meerhof foreshore. By exercise these rights in the foreshore
area of the Remaining Extent of Portion 29".
[40] In an affidavit filed on behalf of the Minister, in the same application before Davis J,
reference is made to the aforesaid clause, inserted in the conditions of establishment of
the Meerhof and Schoemansville Townships. That affidavit quotes clause 13 of the
Schoemansville Township Establishment Conditions which provides for the right of
access to the dam for fishing purposes at an identified location as reflected in the 1922
Notarial Contract for all owners. The Minister then aveis:
25
"44. These rights were not only provided for in the condition of establishment of the two
townships but were incorporated as a condition into the title deeds of the various
erven in all of the townships."
(41] There was no dispute before Davis J, or in the SCA, or in the rescission application before
Cilliers AJ, that these rights were recorded in the conditions of establishment of the
relevant townships, nor that these rights are incorporated in the title deeds of the relevant
owners. There was also no allegation that any one of the property owners in the relevant
townships are (or were) engaged in litigation to enforce any such right by virtue of the
right being disputed or frustrated by the Minister or anyone else. On the version of First
Appellant as quoted in paragraph [39] supra, those owners have been exercising their
rights, and are still exercising their rights of access. Leaving aside the Appellants' lack of
locus standi to apply for an order to rescind the Davis judgment and order on the basis
that it is a nullity by virtue of it being a judgment in rem and granted in the absence of
joining those owners, it is clear that the relief claimed in this respect by Appellants also
will have no practical effect or value, because the owners have a right of access. duly
registered in their title deeds, which they presently enjoy (on First Appellants' own
version).
(42) On reading paragraph 5 and its numerous sub-paragraphs in the affidavit deposed to by
First Appellant in the rescission application, the deponent essentially avers that officials
employed by the Department of Water affairs misinterpreted the order of the SCA and
refuse to recognize the rights of property owners because the SCA dismissed the appeal.
Based on this consideration, First Appellant avers that it is necessary that the order
rescinding the Davis Judgment should be granted and this is the high-water mark of the
Appellants case on the practical effect that the appeal will achieve.
26
(43) That argument is, in my view, based on a lack of appreciation for the fact that the SCA
effectively found that the owners of properties in the two relevant townships do not have
a right to insist on the registration of a praedial servitude over State land in order to secure
their access to the dam, and that finding is based on an interpretation of the original 1918
agreement and 1922 Notarial Contract and the application of the law. The SCA also found
that clause K was unenforceable, being an agreement to agree. The claim for acquisitive
prescription was dismissed on the basis that the SCA held that it is a formidable onus to
prove acquisitive prescription and the Appellants failed to provide adequate evidence of
the actual use of the foreshore for that purpose. The allegations of fraud which were
allegedly made in the rescission application therefore cannot upset those findings of the
SCA . The only fact which thus remains worthy of consideration in relation to the issue of
practicality of the appeal insofar as the relevant owners are concerned is the allegation
that their rights are being disputed by officials who misinterpret the order.
[44] In my view the answer to that complaint lies in the fact that those owners do not have an
unrestricted right of access over State land, but enjoy access to the dam in the manner
as recorded in their respective deeds of title as set out in paragraphs [39] to [41] supra
and confirmed by the First Appellant. The drastic measure of rescission (considered
against the background of the peculiar facts of this matter or litigation) is not the
appropriate manner to avoid the misinterpretation of an order of Court by lay officials.
[45] In any event, rescinding the order and judgment of Davis J will not change the fact that
the SCA held that the rights emanating from clause K in the agreement were personal
rights which do not give rise to a praedial servitude, nor will it change the finding by the
rights which do not give rise to a praedial servitude, nor will it change the finding by the
SCA that clause K in the 1922 Notarial Contract is void and unenforceable and can not
give rise to a claim for transfer of a praedial servitude.
27
[46] Based on the aforesaid the appeal, if successful, would yield no practical effect and/or
will have no practical value and stands to be dismissed on that ground alone.
THE RULE 42(1)(b) ORDER
[4 7] It was argued on behalf of Appellants that Cilliers AJ erred procedurally when the order
of Davis J was amended as set out in paragraph [17] supra. During the hearing of the
appeal, and on direct questioning, counsel acting on behalf of the Appellants readily (and
correctly), conceded that the "normal"order in an application for leave to appeal is namely
an order that cost will be cost in the appeal. In my view it is patently obvious that the order
of Davis J was incorrectly recorded and this is confirmed by the record of those
proceedings which were attached to the R42(1) application.
[48] Appellants argument that Cilliers AJ acted procedurally incorrect or irregularly cannot be
upheld. The attached record of those proceedings confirms the fact that the recorded
order was incorrect and confirms that Davis J ordered costs to be costs in the appeal.
Appellants' argument that they were acting in the public interest and for that reason seek
to re-visit the costs order is opportunistic because the Appellants developed the argument
relating to the rights of other property owners not joined in the proceedings only when
instituting the rescission application as a ground to argue that the order of Davis J is a
nullity. It is clear that the Appellants at all times acted in their own interest as confirmed
by the fact that they never joined the other owners which they now claim are being
prejudiced by the judgment in rem.
[49] Rescinding that part of the order of Cilliers AJ for purposes of enabling the parties to
argue the issue by way of another opposed application will result in frivolous litigation and
28
a waste of scarce court resources. TYC filed an affidavit in support of the Rule 42(1 )(b)
application and Appellants answered thereto. It was well within the inherent jurisdiction
of Cilliers AJ to adopt a procedure where he disposed of that issue without hearing oral
evidence and to correct an order which was patently incorrectly granted and/or recorded
in the order, and in so doing Cilliers AJ exercised a discretion which cannot be found to
have been exercised capriciously or mala fide and in my view this Court cannot interfere
with the exercise of that discretion.
CONCLUSION:
(50) Considering the aforesaid, I am of the view that the appeal should be dismissed.
[51] At the hearing of the appeal, the parties were ad idem that the cost should be awarded
to the successful party, taxed on Scale C, including cost of two counsel.
In the result, I propose the following order:
(1 J The appea l is dismissed.
[2] Appellants are ordered, jointly and severally, the one paying, the other to be absolved, to
pay the cost of the appeal, including cost of two counsel where applicable, taxed on Scale
C.
PA VAN NIEKERK
JUDGE OF THE GAUTENG DIVISION,
PRETORIA
I AGREE:
I AGREE:
DATE OF HEARING
DATE OF JUDGMENT
APPEARANCES
FOR APPLICANTS
INSTRUCTED BY
RESPONDENT
INTSTRUCTE D BY
29
•
M MBONGWE
UDGE OF THE GAUTENG DIVISION
- PRETORIA
JUDGE OF THE GAUT
13 MAY 2026
12 JUNE 2026
ADV ELSSC
ADV RETIEF
COUZYN HERTZOG & HORAK
ADV ERASMUS SC
ADV MPSHE
STATE ATTORNEY